Fairfax's Devisee v. Hunter's Lessee
11 U.S. 603

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U.S. Supreme Court

Fairfax's Devisee v. Hunter's Lessee, 11 U.S. 7 Cranch 603 603 (1813)

Fairfax's Devisee v. Hunter's Lessee

11 U.S. (7 Cranch) 603

ERROR TO THE COURT OF

APPEALS OF VIRGINIA

Syllabus

Lord Fairfax, at the time of his death, had the absolute property, seizin, and possession of the waste and unappropriated lands in the Northern Neck of Virginia.

An alien enemy may take lands in Virginia by devise and hold the same until office found. The Commonwealth of Virginia could not grant the unappropriated lands in the Northern Neck until its title should have been perfected by possession, and the British treaty of 1794 confirmed the title to those lands in the devisee of Lord Fairfax.

An alien can take lands by purchase, though a not by descent, at the common law, or in other words, he cannot take it by the act of law, but he may by the act of party.

There is no distinction whether the purchaser be by grant or by devise; in either case, the estate vests in the alien not for his own benefit, but for the benefit of the state. Or, in the language of the ancient law, he has the capacity to take, but not to hold lands, and they maybe seized into the hands of the sovereign.

Until the lands are so seized, the alien has complete dominion over them; he is a good tenant of the freehold in a praecipe on a common recovery, and may convey the same to a purchaser. It seems indeed to have been held that an alien cannot maintain a real action for the recovery of lands, but it does not thence follow that he may not defend, in a real action, his title to the lands, against all persons but the sovereign.

In respect to these general rights and disabilities, as to real property, there is no difference between alien friends and alien enemies.

During the war, the property of alien enemies is subject to confiscation jure belli, and their civil capacity to sue is suspended.

The title acquired by an alien by purchase is not divested until office found; the principle is founded upon the ground that, as the freehold is in the alien, and he is tenant to the lord of whom the lands are holden, it cannot be divested out of him, but by some notorious act by which it may appear that the freehold is in another.

The reason of the difference, why, when an alien dies, the sovereign is seized without office found, is because otherwise the freehold would be in abeyance, as the alien cannot have any inheritable blood. Even after office found, the King is not judged in possession, unless the possession were then vacant, for if the possession were then in another, the King must enter or seize by his officer, before, the possession in deed shall be adjudged in him.

Until the King be in possession by office found, he cannot grant lands which are forfeited by alienage.

This was a writ of error to the Court of Appeals of Virginia in an action of ejectment involving the construction

Page 11 U. S. 604

of the treaties between Great Britain and the United States, the judgment of the Court of Appeals being against the right claimed under those treaties.

The state of the facts, as settled by the case agreed, was as follows:

1. The title the late Lord Fairfax to all that entire territory and tract of land, called the Northern Neck of Virginia, the nature of his estate in the same as he inherited it, and the purport of the several charters and grants from the Kings Charles II and James II, under which his ancestor held, are agreed to be truly recited in an Act of the Assembly of Virginia, passed in the year 1736 (vide Rev.Code, v. 1, ch. 3, 5) "for the confirming and better securing the titles to lands in the Northern Neck, held under the Right Honorable Thomas Lord Fairfax,"

&c.

From the recitals of the act, it appears that the first letters patent (1 Car. 2) granting the land in question to Ralph Lord Hopton and others, being surrendered in order to have the grant renewed with alterations, the Earl of St. Albans and others (partly survivors of, and partly purchasers under the first patentees) obtained new letters patent (2d Car. 2), for the same land and appurtenances, and by the same description, but with additional privileges and reservations, &c.

The estate granted is described to be

"All that entire tract, territory or parcel of land, situate, &c., and bounded by, and within the heads of the Rivers Tappachannock, &c., together with the rivers themselves, and all the islands &c., and all woods, underwoods, timber, &c., mines of gold and silver, lead, tin, &c., and quarries of stone and coal, &c., to have, hold, and enjoy the said tract of land, &c., to the said [patentees] their heirs and assigns forever, to their only use and behoof, and to no other use, intent, or purpose whatsoever."

There is reserved to the Crown, the annual rent of

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